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STATE OF MISSISSIPPI v. JOHN C. HOFFMAN

JUNE 03, 1987

STATE OF MISSISSIPPI
v.
JOHN C. HOFFMAN



BEFORE WALKER, C.J., DAN LEE AND PRATHER, JJ.

PRATHER, JUSTICE, FOR THE COURT:

This appeal involves the elements to the crime of false pretenses and calls upon this Court to assess the sufficiency of criminal information formally charging John Hoffman with the commission of such a crime. This Court concludes, as did the trial judge, that the information "does not particularize the crime of false pretenses" to the degree required by law and was thus properly dismissed on defense demurrer.

I.

 Hoffman (an attorney) was charged by information in 1984 for the crime of false pretenses *fn1 relating to an arrangement whereby he combined with Lott (general manager of Aetna Finance Company) and Rivenbark (a branch manager of Aetna) in an allegedly illicit purchase of lands owned by Aetna. Though the charge is confusing and inartfully worded, this Court finds the relevant allegations to include the following:

 1. Lott and Rivenbark approached Hoffman to act as a "straw man" in purchasing lots owned by Aetna and conveying them to a third person.

 2. Hoffman purchased the two lots for $2500.00.

 3. To reimburse Hoffman for this expenditure, Lott and Rivenbark allowed him to submit to Aetna $2500.00 in fraudulent legal billings and caused these bills to be paid by Aetna.

 4. Thereafter, Hoffman sold the lots to Rivenbark's sister for $4500.00, paying Lott and Rivenbark $800 each from the sale proceeds. Hoffman executed a warranty deed on this transaction, the deed being recorded on January 27, 1982.

 5. When the loan underlying this sale to Rivenbark's sister was randomly selected for review by Aetna, Hoffman issued a certificate of title verifying that a deed of trust had been recorded prior to the loan, a fact which all three men knew was false.

 On these facts, Hoffman was charged "with the felonious intent to cheat and defraud Aetna . . . of the sum of . . . $1600.00 . . . ." Following this charge, Hoffman demurred and moved to quash the indictment on several grounds, including the complaint that the information failed to sufficiently apprise him of the nature of the crime of which he was accused. The trial judge dismissed the charge on this ground, an action prompting the State to take this appeal. This Court doesn't examine the other bases for the demurrer but finds that the information fails to satisfy the level of specificity and clarity required by State law.

 Under Miss. Code Ann. 97-19-39 (1972) and the cases interpreting this section, the crime of false pretenses occurs when one makes a false representation of a past or existing fact with the intent to deceive and with the result that the accused obtains something of value from the party

 deceived. State v. Lott, No. 56,994 (decided May 13, 1987) (not yet reported); Walley v. State, 454 So. 2d 734 (Miss. 1984); Young v. State, 209 So. 2d 189 (Miss. 1968). Furthermore, there must be evidenced some detriment or injury to the person deceived. Gordon v. State, 458 So. 2d 739 (Miss. 1984). These requirements mark the skeletal requirements of a charge of false pretenses. With the exception of the allegation that Hoffman received $2500 from Aetna on the presentation of fraudulent billing statements, it appears highly doubtful that the remaining facts would constitute false pretenses under the preceding discussion. This Court, however, affirms on a separate ground.

 Apart from the question of whether a crime has been charged at all exists the determination of whether the indictment meets the mandated level of specificity and clarity. The adequacy of a formal charge in this regard is controlled by Rule 2.05, Uniform Criminal Rules of Circuit Court Practice. While this rule does not require hypertechnical detail, it nonetheless requires "a plain, concise and definite written statement of the essential facts constituting the offense charged and . . . fully (notifies) the defendant of the nature and cause of - the accusation against him."

 As heretofore noted, "(A) defendant in a criminal case defends against an indictment, not a statute," and thus "is charged under statute only to the extent that the indictment charges acts which are unlawful under the statute." McCullum v. State, 487 So. 2d 1335, 1338 (Miss. 1986). See also: Winston v. State, 479 So. ...


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